01a53839
08-16-2005
Karen M. Owens, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Karen M. Owens v. United States Postal Service
01A53839
August 16, 2005
.
Karen M. Owens,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53839
Agency No. 4H-310-0100-99
Hearing No. 110-A1-8113X
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning her complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405.
The record reveals that during the relevant time, complainant was employed
as a Purchasing Specialist, Administrative Services, at the agency's
South Georgia District facility. Complainant sought EEO counseling and
subsequently filed a formal complaint for Agency No. 4H-310-0100-99 dated
March 9, 1999, alleging that she was discriminated against on the basis
of perceived disability and reprisal for prior EEO activity when:
On December 28, 1998, complainant was not permitted to return to her
previous position after receiving medical clearance from the Area Medical
Officer and instead, was offered a lower level position.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ).<1> By Order dated February 6, 2003, the
AJ determined complainant's request for a hearing (dated November 7,
2000, and received November 8, 2000) was untimely. Thereafter, the
AJ remanded the matter to the agency to issue a final decision on the
merits of complainant's complaint.<2>
On December 3, 2003, the agency issued a final decision finding
complainant failed to establish a prima facie case of retaliation.
The agency noted that complainant's prior EEO activity occurred on
November 18, 1998, three months prior to the instant matter. The agency
found that the passage of three months between the protected activity and
the allegation raised in this complaint does not give rise to an inference
of a retaliatory motive. Further, the agency found the record void of
any evidence that the Area Medical Officer was aware of complainant's
prior EEO activity. Thus, the agency concluded complainant failed to
establish a nexus between the present matter and her prior EEO activity.
With regard to her disability claim, the agency found that the record
is void of any evidence from a medical physician that complainant
suffers from a disability that substantially limits any of her major
life activities. Further, in response to complainant's assertion
that the agency believed she had a disability, the agency found
absent any documentation that complainant suffered from a disability,
it was not analyzing her case based on reasonable accommodation or
disparate treatment. The agency found that the record reveals that
agency officials articulate a legitimate nondiscriminatory explanation
for its employment decision. Specifically, the agency noted that the
Area Medical Officer issued instructions that complainant should not be
permitted to return to work. Regarding complainant's claim that she
was offered a lower level position, the agency noted that Person A,
Manager, Administrative Services, testified that he had only provided
complainant a list of eligible vacancies. The agency stated complainant
was not offered any specific position. Thus, the agency concluded that
complainant failed to establish that its articulated reasons were not
credible or were a pretext to mask prohibited discrimination.
On appeal, complainant argues that the AJ incorrectly dismissed her
request for a hearing as untimely. With regard to the agency's final
decision, complainant states that the agency failed to timely issue its
final decision. Complainant also states that the EEO Counselor failed to
provide her with information on how the federal sector process works and
failed to properly discuss her complaint with her. Further, she claims
that the EEO Counselor failed to develop an impartial and appropriate
factual record.
At the outset, we find that the evidence supports the AJ's determination
that complainant's November 7, 2000 hearing request was untimely.
Specifically, we note that on appeal, complainant does not state when
she received the agency's notice regarding her right to request a hearing
and the report of investigation. Upon review of the record, we find the
evidence sufficient to establish that the agency delivered the report
of investigation to complainant's address of record on September 8,
2000, and that complainant's hearing request was, as the AJ determined,
untimely.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review, we find that the agency articulated legitimate,
nondiscriminatory reasons for its action. The agency stated it abided by
the recommendations of the Area Medical Officer that complainant should
not be permitted to return to work. Further, the agency noted it only
provided complainant a list of eligible vacancies but did not offer any
specific position to her.
The burden turns to complainant to establish that the agency's legitimate,
nondiscriminatory reason was pretextual. The Commission finds that
complainant failed to do so. The Commission does not address whether
complainant is a qualified individual with a disability (or was regarded
as such an individual).
Therefore, the agency's final decision finding no discrimination is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 16, 2005
__________________
Date
1The record reveals that complainant was sent three separate transmittal
letters for Agency Nos. 4H-310-0037-99 (110-A1-8112X) dated August 31,
2000;4H-310-00-0101-99 (110-A1-8114X) dated September 5, 2000; and
4H-310-0100-99 (110-A1-8113X) dated September 6, 2000.
2Complainant's three complaints were consolidated for hearing, however,
upon dismissal by the AJ from the hearing process, the agency issues three
separate final decisions, from which complainant filed three separate
appeals with the Commission (EEOC Appeal Nos. 01A41676, 01A53839 and
the present appeal).